Karnataka High Court
M/S. Annapurna Industries And Another vs Syndicate Bank And Others on 20 January, 1993
Equivalent citations: AIR1993KANT279, ILR1993KAR1081, 1993(1)KARLJ519, AIR 1993 KARNATAKA 279, (1993) ILR (KANT) 1081, (1994) 1 CIVILCOURTC 448, (1993) 1 KANT LJ 519, (1994) BANKJ 299, (1994) 1 CIVLJ 362, (1993) 3 CURCC 1, (1993) 2 BANKCLR 606
JUDGMENT
1. This appeal is directed against the order dated 27-8-1992 passed in Execution Case No. 118 of 1987 by the learned Civil Judge, Bhadravathi, rejecting the application tiled under O. 21, R. 90, IPC and ordering confirmation of the sale held by the Court on 24-4-1992 under 0.21 R. 92. CPC.
2. Judgment-debtors 1 and 2 in Execution No. 118, 87 are the appellants before this Court. Respondent No. 1 -- Syndicate Bank. Bhadravathi Branch filed O.S. 117 87 against the appellants and three others for recovery of loans advanced on the security of land of mo acres with the buildings with the rice mill, poova mill and machineries in Hebbandi village of Bhadravathi Taluk in Shimoga District. The appellants and respondents 3 to 5 consented for a decree and the suit was decreed for Rs. 3,96,221.80 with interest. It appears respondenl-1 Bank obtained similar decrees on the same property in three more suits in O.S. Nos. 118 of 1987, 119/87 and O.S. 120 87 on the file of the same court. The total liability in all the four suits came to a sum of Rs. 12,44,649.30ps. inclusive of interest, costs etc. The Execution case No. 118.87 out of which the present appeal arises was for realisation of Rs. 5,63,435.50ps. The decree-holder prayed for recovery of that amount with subsequent interest and costs by sale of mortgaged properties. Notices of sale in the execution proceedings were issued to the judgment debtors. Appellants 1 and 2 and respondent No. 3 were served but failed to take active part in the proceedings before the executing court. The court secured the verified statement filed by the decree-holder and on that basis issued sale proclamations and ordered sale of the properties by issuing successive proclamations to sell on 1-9-1990 and 5-9-1990(2) 3-12-1990 and 18-12-1990 (3) 18-3-1991 and 30-3-1991 (4) 26-8-1991 and 9-8-1991 (5) 13-1-1992 and 31-1-1992(6)21-3-1992 and 28-3-1992. On all thesedates the sale proclamations were returned unexecuted for want of bidders. Thereafter the proclamation issued for sale of the properties on the spot on 18-4-1992 attracted some bidders and the present auction purchaser respondent No. 2 was the highest bidder for an amount oi Rs. 6,55,555, - and his bid of highest amount offered before the Court also on 24-4-1992 was accepted and he deposited 1/4th of the bid amount on the dale the bid was accepted and the balance amount of Rs. 4,91,555 - an 1-6-1992 on the day on which the Court reopened after Summer Vacation.
3. Within the period allowed by law the appellants 1 and 2 made an application under Ordcr 21, Rule 90 read with Section 151 of the Code of Civil Procedure for setting aside the sale alleging that the properly involved was worth more than Rs. 25,00.000 - and was sold for Rs. 6.55,555 and there was material irregularity and fraud in publishing and conducting the sale and the boundary description of the property had not been properly described and prejudice had been caused to them in that there was low price realised. They also averred that they had contacted one M/s. Veereswara and Company of Shimoga who had agreed to buy the property at Rs. 9,25,000 - and that was an indication to show that the property worth more had been sold for lesser amount. These contentions were refuted by the decree-holder and the auction purchaser. According to them the property was worth the amount it fetched and that the machines and parts thereof had been tampered and were not in working order and therefore they could not have fetched higher amount. According to them the allegations of material irregularity and fraud in publishing the proclamations and conducting the sale were vague and were far from truth. They also alleged that the appellants were interested only in dragging on the proceedings and their conduct showed that they had all along kept quiet during the execution proceedings and they never look interest in the execution proceeding and they were therefore estopped from putting forth untenable contentions.
4. According to the lower court proceedings, it is seen that appellant-2 was present when the court accepted the highest bid made by respondenl-2 Sri. Nagesh and in his presence the proceedings had taken place in respect of acceptance of the highest bid and confirmation of the sale.
5. The learned Civil Judge posted the matter for hearing and heard the arguments of Ihe Counsel appearing on both sides and proceeded to reject the application holding that there were no specific allegations with legard to material irreguiarity or fraud in publishing or conducting the sale and therefore there was no inquiry called for and therefore he did not post the matter for inquiry. In this behalf, the observations of the learned Civil Judge reads as under :--
"When the said provisions contemplate that no sale shall be set aside on such grounds unless upon the facts proved infer that it is very mecessary for the applicant to plead material facts to constitute any fraud or material irregularity. When such material facts are not pleaded and when the facts averred do not constitute any fraud, question of holding an enquiry on the application does not arise, and consequently in the absence of material facts question of proving such facts to set aside the sale also does not arise."
Thereafter the learned civil Judge proceeded to hold that sufficient publicity had been given to the sale proclamation and number of bidders were present and the Highest bid of respondent-2 was accented on 21-4-1992. This is found in paragraph 15 of the order of the trial court. It reads as under :--
"In the light of the aforesaid narratioin about the steps taken by the court in issuing the sale proclamation and sale warrants on good number of occasions and as said sale warrants relumed unexecuted for want of bidders and as sufficient publicity was given and as sale proclamations were issued on number of occasions and ultimately sale was held on 18-4-1992. Ever since 1990, the decree-holder was taking steps for sale of the petition schedule property, the sale was not held for want of bidders and after about nearly 2 years sale in question was held on 18-4-1992 and the highest bid of the aforesaid person was accepted before the Court on 24-4-1992."
6. Dealing with the contention of inadequacy of price realised, the learned Civil Judge after referring to the decision in Govind Janardhan Mahale v. Ramdas Keshaw Kamath and the Commentary in the Code of Civil Procedure by Mulla concluded that simple insufficiency or inadequacy of consideration without there being any nexus to irregularity in issuing proclamation and conducting the sale was not sufficient to set aside the sale. He also referred to the conduct of the appellants and found that by their absence throughout the proceedings after receiving the sale notices they had kept quiet and were coming forward to raise objection only lafter the sale in favour of respondent-2 had been accepted and therefore the apparent object was to protract the proceedings. The trial court found that the total liability under all the four suits was more than Rs. 12,00,000/- and the property sold had been subject to all the liabilities and with charges amounting to rupees 12 lakhs odd the judgment-debtors could not expect a purchaser for higher amount and therefore the learned Civil Judge proceeded to accept the contention that the amount realised was what the properties were worth and accordingly proceeded to reject the contentions of the appellants and confirmed the sale. That order is under challenge before this Court in the present appeal.
7. In support of this appeal, the learned Counsel Sri. Rantaswamy Iyengar submitted that the properties were subjected to mortgage by deposit of tide deeds in all the four suits namely O.S. 117/87, 118/87, 119/87 and 120/87 and under the provisions of Section 67A of the Transfer of Property Act, 1882 the creditor and to bring a single suit for relief in respect of the amounts due under all the four mortgages and instead of doing that he had instituted separate suits and had obtained separate decrees and enforcement of such decrees was therefore against the provisions contained in Section 67A of Transfer of Property Act, 1882. It was submitted that the execution proceeding being continuation of the suit, it was open to the appellants to raise this defence in the execution proceedings also. Second submission made before the Court was that sale proclamation did not conform to the requirement of law and there was material irregularity in issuing the same and there was irreguiarity in conducting the sale also and property worth rupees 25 lakhs as admitted by the decree-holder in its verified statement is sold for rupees six lakhs odd which is not even 1 / 3rd of the valuation given by the decreee-holder in the verified statement. It was also contended that in all the four suits decree were passed on consent of the, appellants and the other judgment-debtors' and that consent was on the promise of the decree-holder-bank that some rebate would be extended towards the claim regarding interest and without giving such rebate the decree-holder could not have proceeded to execute the decree and the execution proceedings taken in that behalf are in violation of law and the decree is inexecutable. All these contentions are stated to be without any merit. Therefore in view of the submissions made, following points arise for consideration :--
1. Whether the sale is invalid as being opposed to Sections 67A of Transfer of Property Act on account of failure to consolidate all the claims in one suit ?
2. Whether there is any material irregularity in publishing sale proclamations and in conducting the sale and if so, whether the price fetched in the sale held on 24-4-1992 is the result of such irrgularity in issuing the sale proclamation and the same has caused prejudice to the appellants ?
3. Whether the decree is inexecutable for the failure to extend the rebate if any with regard to the claim towards interest as contended ?
4. To what relief the appellants are entitled ?
8. Point No. 3 :-- Taking the third point for consideration first, there is nothing in the decree under execution to show that any promise had been made by respondent No. 1 decree-holder-bank in regard to giving rebate in respect of claim on interest. The learned Counsel for the appellants contended that the Bank had promised to extend that benefit if they consented for a decree. If any oral promise had been so made, it was open to the appellants to approach the Bank before the bank took steps for realisation of the amount as per the decrees passed in its favour. Such a contention was not urged before the trial court and the trial court has not gone into that aspect. Even now it is open to the appellants to approach the decree-holder and persuade it to extend the concession if it is willing to do so. According to the learned Counsel for the decree-holder-bank such a contention is barred "in view of clause (3) of Rule 90 of Order 21 of the Code of Civii Procedure. It reads as under :--
"No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up."
In the present case, appellants were duly served with the sale notices before steps were taken to settle the sale proclamations. Therefore it was open to the appellants to put forth such a contention on receipt of sale notice. The failure on the part of the appellants to put forth such a contention prevents them from agitating the same in the appeal. Therefore that contention stands rejected.
9, Point No. 1 :-- It is admitted to parties that the appellants and respondents 3 to 5 raised various loans from respondent-1 -- bank and respondent-1-bank instituted four separate suits being O.S. Nos. 117 to 120 of 1987 for recovery of various amounts by sale of the mortgaged property. The property subjected to mortgage by deposit of title deeds in all the four suits is one and the same property which is the subject matter of the present appeal. The legal contention urged by the appellants is respondent-1-bank should have consolidated all the claims in one suit and should have obtained a single decree and its failure in doing so bars it from proceeding with the present execution proceedings as the same are continualion of the suit. Section 67A of the Transfer of Property Act, 1882 reads as under:--
"67 A : A mortgagee who holds two or more mortgage executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under Section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due."
Admittedly respondent-1-Bank held four mortgages in respect of the same property and in the absence of the contract to the contrary, it is bound to sue on all the mortgages in respect of which the mortgage-money has become due. This cotnention was required to be raised by the appellants when the suits were filed and were pending in the court of the learned Civil Judge before they resulted into decrees. This Court in Puttamadamma v. Puttappa, AIR 1969 Mysore 20 has held that Section 67A incorporates no prohibition against institution of suit on one of mortgages in case where no objection to form of suit is taken on earlier occasion. The appellants and other judgement-debtors submitted to passing of decrees in alt the suits and they put forth no contentions with regard to violation of Section 67A of the Transfer of Property Act 1882 when the four suits were pending before the learned Civil Judge. After the execution proceedings were initiated out of which the present appeal arises, on service of sale notice, the appellants failed to put forth these contentions before the trial court and the reasons stated for rejecting the contention in dealing with Point No. 3 apply with equal force to this contention also. Thus for their failure to agitate the matter at the earliest, they are prevented to raise this contention afresh in this appeal. Even otherwise also, there is no error in bringing separate suits though Section 67A provides for consolidation of all the suits. It is held by the High Court of Andhra Pradesh in Kothakappa Chinna Konda Reddy v. R. Venkata Rao, that the benefit of Section 67A can be waived by the mortgagor. Agreeing with that view, from the admitted facts of the case, it is apparent that the appellants and respondents 3 to 5 have waived this contention when they consented to decrees being passed separately in the four suits as noted above. Therefore by their conduct, they are now estopped from agitaling the defence open under S. 67A of the Transfer of Property Act in the execution proceedings. Therefore, Point No. 1 is held against the appellants.
10. Point No.2:-- The petition filed under Order 21, Rule 90 CPC r/w. Section 151 CPC for setting aside the sale according to the learned trial Judge contains reproduction of the wording of Rule 90 of Order 21. CPC without giving details as to how any irregularity or fraud was practised in conducting the sale or in issuing the sale proclamations. Therefore the court proceeded to dispense with the ncessity of holding an inquiry as noted above. This approach of the learned trial Judge is not correct in view of the provisions conlained in Order 21, Rule 90 CPC onwards. The pleadings referred to above disclose that the appellants contended that the mortgaged property, worth twenty lakhs to twenty-five lakhs of rupees was sold for paltry sum of Rs.6,55,555/- and that, according to the appellants was the result of irregularity in publishing the sale proclamations and conducting the sate. In the verification statement accompanying the sale proclamation at Cl. (2), it is stated as under :--
"Except the charge created in favour of the plff.Dhr. bank, the schedule properties are not "encumbered."
The details of the amounts due in respect of the charges in favour of the Decree-holder --bank are not at all mentioned.
11. The resultant low price is being justified by the decree-holder by contending that the rice mill and the machinery was not in working order and parts of the machines had been removed and tampered with and therefore the properties could not have fetched higher price. Prima facie, these contentions would require an inquiry and the learned trial Judge obviously had not bestowed his attention on these circumstances of the case.
12. It is further obvious that the sale proclamations issued in the instant case on six earlier occasions had been returned unexecuted for want of bidders. The dates on which the six proclamations had been issued have ben referred to in extenso earlier. The property put to sale consisted of two acres of industrial land situated in between Shimoga and Bhadravathi towns and the machinery involved in the case was rice mill and poova mill. According to the appellants, the value of the building itself was more than rupees fifteen lakhs and as per the valuation of the recognised engineering consultant, the building was valued at Rs. 9,09,000/- on 30-6- 1984. The verified statement showed the value of the land with the buildings, the mills and the machinery as Rs. 20.00,000/-. The appellants1' contended that total valuation of the property was more than Rs. 25,00,000/-. Even though property was valued at Rs. 20,00,000/- the price fetched in the auction held on 24-4-1992 is Rs.6,55,555/-. The appellants contended that this is the result of irregularity committed in publishing the proclamation and conducting the sale. Details of irregularity in publishing the proclamations and conducting the sale are contended to have not been given. Issuance of proclamations on six occasions which attracted no bidders suggests that the publicity given to the same was not satisfactory. Properties are situated in a small village away from neighbouring important towns of Bhadravalhi and Shimoga. The endorsements on the sale warrants disclose that proclamation was published on the site in the village by beat of tom-tom and by affixing the sale proclamation to boundary stone in the land. Such attempts to sell have gone on for nearly two years from July 1990 to April, 1992. These circumstances should have made the Court to think of giving wide publicity to the sale proclamation in order to attract bidders from all over. The properties involved are industrial land and the buildings with the rice mill, Poova mill with machineries etc. There might not have been persons interested in this property in the small village of Hebbandi or neighbouring Taluk town. Therefore, it was the duly of the Court to give a wide publicity to the proclamation by publishing the same either in the official gazette or in the newspaper having wide circulation. In this behlaf, it is pointed out by the learned Counsel for the decree-holder-respondent-1 that paper publication of the sale proclamation was taken out for sale to be held on 30-3-91 in a newspaper called 'Navika' published from Shimoga. A copy of that peper publication is not made part of the trial Court record. There is no order passed by the trial Court to have the sale published either in 'Navika' or in any other newspaper. It appears that this publication has been got done by the decree-holder of its own accord. Even after the publication of this proclamation, no bidders came forth to buy the property. Therefore, it was all the more necessary for the learned trial Judge to have thought of getting the sale proclamation published not in a newspaper like 'Navika' but in a paper having wide circulation and also in the official Gazette. It is only for meeting such a situation that provisions are made in Order 21, R. 67(2) of C.P. Code, The said provision reads as under -
Rule 67(1).....
(2) "Where the Court so directs such proclamation shall also be published in the official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale."
The above provision is enacted for the benefit of the parties to give wide publicity to the sale proclamation with a view to secure purchasers offering the best price for the property. It was the duty of the Court to have availed of this provision and directed publication of the sale proclamation in the official Gazette or in a local newspaper not like 'Navika' but the one having larger circulation or in both. The trial Court has failed to discharge its duty of giving wide publicity to the sale proclamations and this circumstance has resulted in paltry price or inadequate price to the property put to sale in the auction.
(2) The learned Counsel for the decree-holder pointed out that this being a forced sale, the price offered by the purchasers in auction sale is not the same as the market value of the property and reliance was placed on Ms/. Kayjay Industries (P) Ltd. v. M/s. Asnew Drums (P) Ltd., . The observations made in para 7 of the judgment read as under -
"Certain salient facts may be highlighted in this context. A Court sale is a forced sale and, notwithstanding the competitive element of a public auction, the best price is not often forthcoming. The judge must make a certain margin for this factor. A valuer's report, good as basis, is not as good as an actual offer and variations "within limits between such an estimate, however careful, and real bids by seasoned businessmen before the auctineer are quite on the cards. Moreso, when the subject-matter is a specialised industrial plant, which has been out of commission.for a few years, as inthis case, and buyers for cash are bound to be limited. The brooding fear of something out of the imported machinery going out of gear, the vague apprehensions of possible claims by the Dena Bank which has a huge claim and was not a party, and the litigious sequel aC the judgment-debtor's instance, have 'scare' value in inhibiting intending buyers from coming forward with the best offers. Businessmen make uncanny calculations before striking a bargain and that circumstance must enter the judicial verdict before deciding whether a better price could be had by a postponement of the sale. Indeed, in the present case, the executing Court had admittedly declined to affirm the highest bids made on 16-5-1969, June 5, 1969 and August, 28, 1969, its anxiety to secure a better price being the main reason. If Court sales are too frequently adjourned with a view to obtaining a still higher prices it may prove a self-defeating exercise, for industrialists will lose faith in the actual sale taking place and may not care to travel up to the place of auction being uncetain that the sale would at all go through. The judgment-debtor's plea for postponement in the expectation of a higher price in the future may strain the credibility of the Court sale itself and may yield diminishing returns as was proved in this very case."
The decision of the Supreme Court discloses that Court had made all possible efforts to secure better price for the property put to sale. The same cannot be said of the trial Court in the case on hand. The trial Court has gone on issuing publication after proclamation without applying its mind as to whether the proclamation so issued had been given due publicity. Industrial land of two acres with machinery is not an ordinary commodity which many people in the village want to buy. Even in a big town it is difficult to find buyers of such an establishment. Therefore, it was necessary for the Court to have the sale proclamations published in the official gazette or in a newspaper having circulation not merely in the State but also outside the State. Even after the publication of the sale proclamation in 'Nivika' newspaper failed to bring bidders in March 1991, it was imperative for the Court to have taken resort to Order 21, Rule 67 (2) CPC. There also the Court failed to apply its mind to the facts of this case and went on mechanically issuing four more proclama-tions and after finding a bidder offering 1 / 3rd of the valuation of the property, accepted the same as the highest price offered by the bidder. What should be the duty of the Court in such a case has been emphasised by this Court in a decision reported in M/s. Hotel Nataraja v. Karnataka State Financial Corporation, . In paragraph 25, this Court has observed as under -
"The Court has a major role to perform and has a duty towards the judgment-debtor to ensure securing of a fair price for the properties sold in Court auction and to see that it does not suffer because a Court auction is more often held and treated as a poor orphan. Where some of the mandatory requirements such as giving adequate publicity results in the non-fetching of adequate price at an auction sale warrants the sale to be annulled, the said circumstances must themselves be treated as indicating the serious prejudice caused by irregularities of a material character."
The Court owes a duty to the judgment-debtor to secure a fair price for his property put to sale. It is towards securing a fair price, the provisions of Order 21, Rule 67 (2) CPC are to be geared up. The trial court in the instant case has ignored its duty and the provisions contained in Order 21, Rule 67(2) CPC and has mechanically ordered to issue proclamation for selling the property only to conform to the letter of law and ignoring its spirit. The trial court committed a material irregularity in accepting the inadequate publicity of the proclamations as sufficient and it further compounded its omission by observing that no enquiry was called for because the appellants had merely reproduced the wording of Order 21, Rule 90 CPC. This approach of the trial Court has resulted in securing a very low price and these facts eloquently proclaim that prejudice is caused to the judgment-debtors who are the appellants before this Court. If these facts are not to be heeded and the sale held in contravention of the law stated above is confirmed, then there will be patent failure of justice and it is the duty of this Court to prevent such failure of justice by annulling the sale. The a limitted facts demonstrate that the properly which was worth more than rupees twenty lakhs has fetched only Rs. 6,55,555/-. As already explained, the trial Court has failed in securing the best price and the price realised being inadequate prejudice is apparent and this is the result of failure to publish the proclamations so as to given wide publicity. Therefore, without further discussions it has to be held that the acceptance of bid for Rs. 6,55,555/- in favour of respondent-2 and confirming the sale by the trial Court as done on 24-4-92 and 1-6-92 is to be set aside and the sale in annulled.
(3) The next question that arises for considerstion is -- Whether the auction purchaser is entitled to refund of the sale price and the expenses incurred in taking the sale deed. When the said is set aside, the auction purchaser is entitled to refund of the price paid by him. There is no objection for return of the amount paid by him in the Court. By an order of this Court dated 21-10-92, it was directed to invest the same in a fixed deposit in a Nationalised Bank, pending disposal of this appeal. In pursuance of that order the amount has been invested in fixed deposit for a minimum period as found from the correspondence available in the records of the trial Court. It is therefore obvious that the said amount is earning some interest from the date of deposit and the interest so earned has to go to the auction-purchaser. Whatever interest has accrued on that deposit shall go to the benefit of the auction purchaser and it shall be paid to him with the principal amount in deposit.
(4) The learned Counsel for the auction purchaser has prayed for directing a refund of amounts spent on stamp duly in taking registered sale deed and charges paid for getting the sale deed registered. He has also prayed for some compensation on the grounds that he had borrowed the amount :from the bank and private sources to deposit the same in Court. It is seen from the records of the trial Court that on 28-8-92 the appellants moved the trial Court for staying the operation of the order dated 28-8-92 by which the application under Order 21, Rule 90, CPC was rejected. That prayer was rejected and the sale certificate was ordered to be issued on 8-9-92.
(5) In L. Rajan v. Muthusami Naidu, towards the end of paragraph 5 of the judgment, it is observed as under -
"It has also been pointed out that the confirmation of a sale consequent to the dismissal of an application under Order 21, Rule 90 C. P. Code, against which an appeal has been filed cannot really alter the situation and such confirmation is in a sense inchoate or incomplete and does not stamp the transaction with irrevocable finality when alone the rights of the parties get crystallised."
Agreeing with the above observations, it is seen that in the instant case, remedy by way of appeal against the rejection of the application under Order 21, Rule 90 Code of Civil Procedure was available to the judgment-debtors-appellants and they have pursued that remedy and have succeeded therein. The sale certificate issued is not a final document. In fact, the trial Court should not have hurried with issuing the same in view of appellate remedy that was contemplated by the judgment-debtors. Since acts of Court cannot cause prejudice to any party, the auction purchaser also cannot be made to suffer for having taken a sale certificate by buying stamp papers for Rs.78,720/- and spending another "amount of Rs. 13.165/-towards registration charges. These amounts need to be ordered to be refunded to the auction purchaser. The learned Counsel appearing for the auction purchaser as also the appellants submitted that there is no provision in the Stamp Act to pass an order for refund of these amounts and that this Court may pass appropriate orders under Section 151 of C.P.C. to meet the ends of justice. It is the duty of this Court to see that setting aside of sale in favour of auction purchaser does not hurt him or make him suffer loss or any other kind of injury. Therefore, he needs to be put back in the position he would have been if he had not spent on taking a sale certificate as ordered by the lower Court. Accordingly, the Inspector General of Stamps in the State shall refund the stamp duty of Rs. 78,720/- and registration charges of Rs. 13,165/- spent on taking the sale certificate to the auction purchaser, Sri. H. Nagesh who is respondcnt-2 -before this Court. So far as the claim for compensation for having paid interest on the amount borrowed by him is concerned,it is to be seen that the auction purchaser knew well (hat the purchase made by him in Court auction was liable to be anulled and he had taken a chance knowing full well that what he had done was not a firm investment. Therefore, he has no right to ask for compensation for the interest paid on the amount he was required to deposit in Court. Therefore, his claim in that behalf cannot be conceded. In the result, the following order is passed :--
ORDER The appeal is allowed.
The impugned order dated 7-8-92 dismissing the application under Order 21, Rule 90 C.P.C. is set aside. The said application is allowed. The sale held on 24-4-92 accepting the bid of respondent-1 for Rs. 6,55,555/- and confirmed by the trial Court is set aside. The trial Court is directed to proceed with the execution proceedings from the stage of effecting necessary publication to the sale proclamation for selling the property as pointed out above or by directing the sale of the property by appointing a receiver if a request is made in that behalf by the decree-holder. It is ordered that the Inspector General of Stamps shall issue refund order in respect of Rs. 78,720/-spent on buying stamp papers and Rs. 13,165/- spent on registering the sale certificate issued in favour of Sri. H. Nagesh-the auction purchaser in the case.
Parties to bear their own costs.
13. Appeal allowed.